Divorce Preparation FAQs:
You should have an exit strategy for leaving the relationship. It’s one thing to decide that you’re going to get a divorce, but it’s another to have a plan for where you’re going to live, a plan for housing issues if there are children, a plan for possession schedules for the children, and a plan for where they’re going to go to school. You can help yourself and your attorney by having a plan of where you want to go.
Early on in divorce cases, we need clients to gather documents. Clients can help attorneys by coming up with a budget to help us advise them, by identifying assets that are in the community estate that are subject to being divided, and by putting documents together to prove any separate property that our clients might be alleging is not subject to being divided.
Cases often start with a volume of email and texts back and forth between the parties. A party can start to gather and copy all of those documents—including bank statements, broker statements, deeds on houses, or communication between the parties—so we can help devise a plan of what would be best for our clients and what assets we want to try to secure in the divorce. We can then come up with a realistic budget so that they have the best opportunities to succeed at the end of the divorce process.
Do you have advice for business owners going through the divorce process to ensure their divorce has the least possible affect on their business?
Even though going through a divorce is a very emotional point in a person’s life, they need to take a step back and let the attorneys navigate the process for them. Many people make the mistake of getting in the middle of every issue. They start ignoring their business and pay more attention to the emotional issues in their divorce. The reason you hire an attorney is to deal with those issues, rather than you constantly communicating with your spouse and trying to figure out a way to get through it.
Many people that own businesses spend a lot of time trying to limit the exposure of that business, yet by not co-operating in producing documents and not co-operating in determining value, they inhibit the business aspect of it. Let your attorneys do the work that they need to do, limit your communication directly with your spouse to the extent that it impacts how the divorce is happening, and just go about your work while you let the attorneys work on the divorce issues.
The relationship between a family law attorney and his client is different than the relationship between attorneys and clients in commercial litigation cases or other types of civil litigation, in that it truly is both a business relationship and a personal relationship.
The client has to feel comfortable, not only with the legal advice they are receiving, but also that there is good communication and the attorney is giving them accurate information and looking out for their best interest. That may also require the attorney to give the client what they might perceive to be bad news. For instance, a client may believe that they deserve custody of their child, but an attorney may have to tell them that the facts of the case may not warrant them getting custody in the judge’s eyes. Attorneys have to be willing to communicate to their clients so that they’re not creating false expectations. Building a personal relationship of trust between the attorney and client is very important.
You should walk out of the initial consultation feeling that the attorney will advocate for you in your case, will not give you false expectations in an effort to generate fees, and is somebody you can trust to help you through this process so that you can move on with your life, have a good relationship with your children, and continue to operate effectively as a person.
When first beginning a divorce and choosing whether to litigate, mediate, or use collaborative divorce, what is the best divorce process for most people?
That is dependent on the parties themselves, their personalities, and the issues involved in the case. The collaborative model requires two parties that, despite the fact that they’re getting a divorce, do trust each other on a certain level and two lawyers that trust each other.
Once you have signed the collaborative agreement, you are essentially locked into that process. In order to opt out, both sides would have to get new attorneys, pay new retainers, and essentially start over. To be successful in the collaborative model, you’ve got to be willing to trust that your spouse is going to be transparent in terms of the assets. The lawyers have to trust each other so that if expert witnesses are obtained to value businesses, trade separate property issues, or give opinions on child-related issues, you trust that everybody is going to use the same expert and that the experts are not going to be biased towards one of the attorneys.
It takes a lot of trust to lock yourself into the collaborative model, but if you have trust, then it’s a good arena to handle the divorce case. Unfortunately, in most of our divorce cases, you don’t have that trust between the parties if they are about to start the divorce process.
In the litigation model, one pattern we see is a husband who was the breadwinner and controlled the finances and a wife who alleges he is very controlling and wants everything done his way. Sometimes the litigation model might be a better option, because you can get a person like that in front a judge and they can see that their spouse is not in control; the judge is in control.
In the litigation model, if you can’t get a case resolved and it looks like it’s going to be tried, most judges in Texas will ask you to go to mediation, but there are few exceptions. Mediation is a great process to get cases resolved, but you’ve got to consider the cost. To go mediation with a good mediator and two attorneys can easily cost the parties $8,000 to $10,000 for a daylong mediation session. You need to identify the issues that need to be tried in a case, find out if there is a realistic chance that you can settle in mediation, and make sure that you’ve got a good mediator who’s really going to try to resolve the issues before you have to go to a trial.